The Public Contracts Regulations 2015 have arrived!
Today, the Public Contracts Regulations 2015 become effective and it is not business as usual at all. Never before has the mantra “plan, plan and then plan some more” been more apt than now in describing how contracting authorities should be approaching their procurements.
Procurement exercises commenced before today are still subject to PCR 2006 (as amended) and you should ensure that you retain your copy of the 2006 regulations as you may need them for some time yet. There are also some specific exceptions to the immediate application of the PCR 2015:
- The rules relating to the use of electronic communication during procurements (Reg 22) come into being on the 18th October 2018, except for: 1) Electronic communication in relation to procurements run by central purchasing bodies (Reg 37(7)); and 2) The making available of the European Single Procurement Document electronically (Reg 59(7)),both of which come into effect on the 18th April 2017.
- Regulation 61 which provides that recourse shall be had to e-Certis, the European Commission’s online repository for certificates and other forms of documentary evidence, comes into effect on the 18th October 2018;
- For all contracting authorities that do not perform their functions on behalf of the Crown, Regulations 106, 108, 110 and 112 all of which deal with the publication of information on Contracts Finder, come into effect on 1 April 2015;
- The PCR 2015 will not apply to any contract award procedure relating to the procurement of health care services for the NHS within the meaning of the National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013 until 18 April 2016.
From today, Regulation 53 requires contracting authorities to offer unrestricted, full and direct access to the procurement documents from the date of the publication of the OJEU or the date on which an invitation to confirm interest is confirmed. This means that documentation must be at a more advanced stage of readiness than may usually be the case and this will have to be managed through the planning phase of the procurement.
The government has also taken the opportunity to advance its agenda on increasing SME participation in publicly procured contracts as well as increasing transparency and improving opportunities for growth. The provisions of Part 4 of the PCR 2015 encapsulate these aspirations by, for example, providing for the use of Contracts Finder for the publication of contract notices and awards and introducing turnover caps. Complying with these provisions will similarly require planning and the development of a good business case before starting the tender. Part 4 does not apply to the procurement of health care services for the NHS within the meaning of the National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013.
Remember that the old classification of “Part B” services has fallen away and in its place is the new “light touch regime”. Services that fall within the classification of the light touch regime must be advertised in the OJEU if valued at over €750,000.
We know that there is a significant amount of work to be done to amend your templates and update the language. There will be guidance issued from the Cabinet Office and you should look out for this, but Blake Morgan is also running a series of seminars and workshops in March and April. The seminars will update you on all the changes in the PCR 2015 and the workshops are interactive sessions using a mock procurement to illustrate how we think some of the new requirements will be applied in practice.